CONFIRMATION BY THE SENATE

I.270.1

CONFIRMATION BY THE SENATE, the action of a senate by which it expresses its approval of a nomination submitted to it by the president or by a governor. The usage is for the senate to refer a nomination to a committee, unless there be an exception made in cases where the nominee is a senator. If the nomination is approved, notice to the president is usually delayed for three days, during which a reconsideration can be moved. The provisions of the state constitutions upon this subject are generally closely analogous to those of the constitution of the United States. It will be sufficient, therefore, to refer to the latter, which declares that the president "shall nominate, and, by and with the advice and consent of the senate, shall appoint ambassadors, other public ministers and consuls, judges of the supreme court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law; but congress may by law vest the appointment of such inferior officers, as they think proper, in the president alone, in the courts of law, or in the heads of departments."

I.270.2

—The theory of the constitution is to separate legislative and executive authority; all legislative powers granted being vested in congress, and the executive power being vested in the president. But to this general rule there are three great exceptions: 1, this requirement of senatorial confirmation of nominations; 2, the making of treaties by the executive by and with the advice and consent of the senate; and 3, the provision requiring the president's approval of a congressional enactment to give it the validity of law; unless re-enacted by a two-thirds vote, over a president's veto.

I.270.3

—The appointment of officers, especially for service in the executive department, is an executive function of the most emphatic character. It being the paramount duty of the president to see that the laws are faithfully executed, he can only do so through executive officials subordinate and responsible to himself. To require the assent of one branch of the legislature, to these appointments, obviously gives that body a great influence within the executive department.

I.270.4

—The fear of a dangerous centralization of power in the executive, and the hope that the scrutiny of the senate would tend to the selection of worthy officials, appear to have been the main reasons for conceding this share of executive functions to that body. There was much diversity of opinion on the subject in framing the constitution. In the form in which it was first completed, the senate was allowed no participation in appointments, except that the senate itself was to appoint both ambassadors and judges of the supreme court, without any act on the part of the president.

I.270.5

—Congress has vested the appointment of a large number of subordinate officials in the heads of departments, and in the courts, as authorized in the language cited; leaving, however, those of the higher grade subject to confirmation by the senate. The latter number several thousands altogether; there being about 550 (including, for example, 112 collectors of customs and 126 collectors of internal revenue) in the treasury department alone, and 1,840 postmasters and several of the higher officials in the postoffice department, who are subject to confirmation. All postmasters who have a salary of $1,000 or over are nominated by the president and confirmed by the senate. Foreign ministers and consuls, judges and governors of territories, are an important portion of the nominations requiring senatorial confirmation. No small portion of the time of the president and of the members of the senate is absorbed by these nominations, and the debates and contests which grow out of them. The causes which gave this power to the senate, as well as the language in which it is conferred, make it plain that, in the theory of the constitution, the authority and duty of that body are little more than to take care that the nominees of the president are competent for the places for which they are selected. It would be a manifest abuse for the senate to use its authority to dictate executive policy or to compel the executive to yield to the political views of the majority of the senate or to the personal wishes of its members. The principles and policy which a president and an administration represent, have been approved by the people at his election; and, plainly, it was not intended that a majority of a senate, holding over under a six-year tenure, should use its power over nominations to defeat that policy or to coerce the president in the matter of taking care that the laws are faithfully executed.—"The senate has but a slight participation in the appointments to office. The senate is called upon merely to confirm or reject. The president is to nominate, and thereby has the sole power to select for office; but his nomination can not confer office unless approved by a majority of the senate. His responsibility and theirs are complete and distinct. He can never be compelled to yield to their appointment of a man unfit for office; and, on the other hand, they may withhold their advice and consent from any candidate who, in their judgment, does not possess due qualifications for office." (Story on the Constitution, § 752, 1531.)—"Having no agency in the nomination, nothing but simply consent or refusal, the spirit of personal intrigue and personal attachment must be pretty much extinguished, from the want of means to ratify it." (Kent's Commentaries, 288.)

I.270.6

—At the time chancellor Kent wrote (1826), there had been comparatively little in the action of the senate to discourage his hopeful view; but in judge Story's work, published seven years later, the author appears to have seen reason to think there may be cases in which the senate will act from 'party motives," but, "that they will be rare." He had seen Jackson's administration.

I.270.7

—The question arose, in 1792, whether, in acting upon the nomination of a foreign minister, the senate had a right to go behind the question of his personal fitness and consider the policy of the president in instituting the mission and making the appointment; and it was decided by the senate that it had not; but, at a later period, it was decided the other way in reference to missions to Turkey and Prussia.

I.270.8

—When, in 1832, the question of the confirmation of Mr. Van Buren as minister to England was before the senate, that body, in rejecting him, went quite beyond the authority of the constitution as expounded by Kent and Story; arraigning Mr. Van Buren's policy as disclosed in his instruction which he had prepared as secretary of state, and his political theories as to appointments and removals. He was charged with bringing the New York spoils system to Washington, and enforcing it in the federal administration. In defending him, Mr. Marcy, a New York senator, in answer to Mr. Clay, used this language about New York politicians, which has become celebrated: "When they are contending for victory, they avow their intention of enjoying the fruits of it. If they are defeated, they expect to retire from office. If they are successful, they claim as matter of right the advantages of success. They see nothing wrong in the rule that to the victor belong the spoils of the enemy."

I.270.9

—This new theory—that parties contend as enemies, and that the public offices are to be won and divided as spoils of the victor, and may be regarded as such by senators in voting on confirmations—was slowly developed. There was very early evidence that the senate would not long act, as a body, upon the merits of the nominations as contemplated by the constitution, but would be governed by the personal or partisan reasons which might influence its members from the states where the nominees were to serve. Within six months after Washington was inaugurated, his nomination of a naval officer for the port of Savannah was rejected—the first rejection made by the senate—not because the nominee was an unsuitable person for the office, but because he was unacceptable to the senators from Georgia. In a special message, dated Aug. 6, 1789, Washington set forth further evidence of the fitness of his first nomination, but at the same time submitted a new nomination for the office. This was the beginning of the practice which, in later years, has been designated as the courtesy of the senate. Practically, it treats all nominations of officers to serve within any state as matters to be submitted to the senators of that state (or, if there be but one senator belonging to the senatorial majority, to that senator), whose wishes on the subject are, as a rule, to be conformed to by the senate. To make these wishes effective, it is not understood that they need, as a rule, to be, nor are they usually, supported by reasons. It is generally decisive against the nominee, if he is objectionable to those senators. The fact that the senate shrouds its proceedings upon confirmations in secrecy makes it all the more easy to give effect to this pernicious courtesy.

I.270.10

—How power fully this courtesy appeals to the ambition and the selfish and partisan interests of every senator hardly need be pointed out; for it is plain that each senator, by conceding a controlling influence to the wishes of the other senators, secures for himself a despotic authority over all nominations for his own state. Indirectly, but not less surely, the courtesy extended to another is an act of self-aggrandizement.

I.270.11

—This method of dealing with the subject has obviously defeated the purpose of the constitution, which was to secure the disinterested judgment of the senate, as a body, upon the merits of the candidate. All that is secured, under this rule of courtesy, is the favor of the local senators. By giving them directly the control of all the higher federal appointments for their state, and as a consequence, substantially, the control of the subordinates of their appointees, the senators have become more and more the dictators of state politics. They have become the great dispensers of patronage, and in a corresponding degree, have lost their independence and disinterestedness as legislators. In New York there are 191 postmasters, in Pennsylvania 168, and in Illinois 135, whose nomination must be confirmed by the senate, and whose places are, therefore, a part of the patronage of the senators from those states.

I.270.12

—It was but a natural result of such a system that the senators, whose wishes would be decisive of the fate of a nominee, should attempt to dictate to the president the nomination he should make. And, since the president must see, that to nominate a person objected to by senators, was likely to result in the defeat of his candidate and in hostility, if not in acts of retaliation, on the part of the senators, he is put under a dangerous temptation either to yield his authority altogether or to make his constitutional functions matters of barter and compromise with members of the senate. In this way, matters of legislation and of appointments have been drawn into demoralizing relations, the efficiency of the executive has been impaired; senators have attained a mischievous influence in the departments, and have become a controlling power over patronage, to the great detriment of the federal administration throughout the Union. While the president nominally retains the right to designate the persons to serve the government in the states, their selection is, potentially, in the hands of the state senators, to whom those officials very generally recognize a paramount responsibility. In this way senators have acquired great control, not only of the means of their own re-election, but over all the local elections of the states; the subordinate officials dependent upon their favor being forced to give a part of their time and their salary to carry on the work of partisan politics.

I.270.13

—This prostitution of senatorial authority has been forcibly illustrated in the late proceedings (1881) of the senators from New York.

I.270.14

—Giving paramount importance to their usurped control of appointments rather than to their proper duties as legislators, these senators resigned their seats, in May, 1881, by reason of their dissatisfaction on account of the policy pursued by the president in regard to nominations of federal officers to serve in that state. He declined to make nominations in conformity to the wishes of these senators. They left their seats in the senate before that body acted on the nominations, and applied themselves to the New York legislature for their own re-election, which would approve the long continued usurpation of the senate, a usurpation tending to reduce the nation to little more than a confederacy of states.

I.270.15

—There seems to have been but little forecast of the disastrous results which might flow from the abuse of this power of confirmation. John Adams, however, exhibited a remarkable prescience on the subject. In a letter to Mr. Sherman, written about the time the constitution was adopted, he gives clear warnings of the evils we now suffer. He says the senate will usurp executive functions. "Senators will be solicited by candidates for office. A senator of great influence will be ambitious of increasing his influence, and will use it to get out his enemies and get in his friends, perhaps his instruments." "He will naturally be tempted to make use of his whole patronage, his whole influence, in advising to appointments." "This defect of our constitution will have a tendency to introduce corruption of the grossest kind, both ambition and avarice, into all our elections." "Officers, instead of having a single eye to the executive branch, will be factious, with the factious, partisan senate." * * * "You will find that the whole business of this government will be infinitely delayed by this negative of the senate on treaties and appointments."

I.270.16

—There seems to be no power under the government, except the voluntary action of the senate itself, by which such evils can be averted. When, in 1834, president Jackson made the most vigorous protest against the arbitrary refusal of the senate to confirm his nominees for national bank directors, against whose fitness no objections were made, he expressly disclaimed all pretension of right on his part to inquire into or call in question the reasons of the senate for rejecting a nomination, and the senate refused to give any reasons. Its reasons and its action, save the final result, are its own secrets.

I.270.17

—It is only a high and a formidable public opinion, therefore, which will be sufficient to bring the action of the senate into harmony with the spirit of the constitution and the safety of the country.

I.270.18

—There have been occasions when the proceedings of the president and the senate in the matter of nominations and confirmations have been marked by the most intense partisanship and the most lamentable want of dignity. During Mr. Tyler's administration, there were instances in which the same nomination was made and rejected three times within a single day; and during the administration of Mr. Johnson, there were proceedings in much the same spirit. During the latter administration, tenure of office acts (of 1867 and 1869) were enacted which materially increase the power of the senate in the matter of appointments. These acts provide that every officer who gained his place through an appointment confirmed by the senate shall be entitled to retain it during the term of his appointment, unless removed by the consent of the senate; except that, during a recess of the senate, the president may suspend any such officer, other than a judge, and fill his place until the end of the next session of the senate. It hardly need be pointed out that these acts give senators a still more disastrous influence throughout the executive department, and greatly embarrass and weaken the efficiency of the executive. (See CIVIL SERVICE REFORM, SPOILS SYSTEM.)

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